The Board of Alien Labor Certification Appeals (BALCA) reversed a Certifying Officer’s denial of PERM application stating that a denial based primarily on the foreign national’s lack of prior experience with congruent job titles must be reversed. (Sumeru Inc, 2013-PER-01241).

Sumeru, Inc. filed an Application for Permanent Employment Certification (“Form 9089”) listing the Alien with a Section H job title of “project manager” and requiring either a master’s degree in Engineering and 24 months’ experience in the field or alternately a bachelor’s degree in Computer Science or Information Systems and 5 years’ experience in the field. The foreign national possessed a bachelor’s degree in Engineering and 4 and ½ years’ experience with Sumeru and 5 years’ prior experience in 3 jobs with titles other than “project manager” but with like duties and responsibilities.

The CO denied the PERM application stating that hiring the foreign national is not in accordance with the minimum requirements for the job opportunity listed in Form 9089. On appeal, Sumeru filed a Request for Review asked the DOL to focus on the duties of the position in question, not mere title only. Sumeru cited Matter of Maple Derby, Inc., 1989-INA-185 in which an alien qualified for a position despite a difference in job titles. Sumeru also provided a detailed chart aligning each required duty to a duty the Alien maintained in a previous position.

Upon review, BALCA reversed the denial of labor on grounds that the foreign national’s prior experience was substantially equivalent to the duties required by the employer.

BALCA reversed a Certifying Officer’s (CO) denial of labor certification after it was persuaded that an employer’s failure to provide an unaltered copy of requested Form 9089 in response to the audit request was due to an electronic processing system and printing error that cut off language in the form. (Spirent Communications, 2013-PER-02757).

Spirent Communications, Inc. filed Form 9089 sponsoring a foreign national for permanent employment. The application was later chosen for audit requiring the employer to provide a copy of the submitted Form 9089. After noticing a sentence at the end of both paragraph H. 11 and H. 14 of the form were unintendedly cut off by the electronic processing system, Spirent provided a corrected form to include each entire sentence. The corrected language matched what was included in paragraph K-9 of Form 9089 and the Prevailing Wage Determination.

The CO denied the PERM application citing that the corrected cut off sentence violated the requirement of an unaltered copy of Form 9089. Spirent asked for reconsideration stating it had no intent to deceive and the dangling sentence had no material effect on recruitment. Spirent additionally submitted an affidavit explaining the discrepancy between printed and electronic documents. The CO upon reconsideration upheld its denial - stating Spirent failed to submit an unaltered copy of the form.

On appeal, BALCA found that correcting an obvious error was not a substantial failure to respond. Spirent’s notarized affidavit and attorney both explaining the mistake as well as the language in question being represented in full in paragraph K-9 and the Prevailing Wage Determination buttressed its appeal. Thus, BALCA remanded the matter for certification.

Although the company ultimately prevailed, this case illustrates the importance of checking system printouts before submission and maintaining an audit file.